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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> D.P.P. v. Moore [2006] IEHC 142 (5 May 2006)
URL: http://www.bailii.org/ie/cases/IEHC/2006/H142.html
Cite as: [2006] IEHC 142
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Neutral Citation Number: [2006] IEHC 142
[2004 1179 SS]
IN THE MATTER OF SECTION 52(1) OF THE COURTS (SUPPLEMENTAL PROVISIONS) ACT 1961
AND
IN THE MATTER OF A CONSULTATIVE CASE STATED
BETWEEN
APPLICANT
RESPONDENT
EXTEMPORE JUDGMENT delivered by Mr. Justice O'Neill on the 5th day of May, 2006.
This is a case stated pursuant to s. 52 subs. 1 of the Courts (Supplemental Provisions) Act 1981 by Judge Flann Brennan, a Judge of the District Court.
The background to the matter is as follows. On the 8th June, 2002, the accused was apprehended or arrested at Mell, Drogheda, Louth in the District Court area of Drogheda where he was driving a mechanically propelled vehicle and was in due course charged with an offence of driving there while there was a concentration of alcohol in his breath exceeding a concentration of 35 micrograms of alcohol per 100 millilitres of breath contrary to s. 49, subs. 4 and 6(a) of the Road Traffic Act 1961 as inserted by s. 10 of the Road Traffic Act 1994.
The matter came before the District Court on the 28th May, 2004 and the solicitor for the applicant applied to the District Judge for certain orders. Firstly, he applied for an order compelling the prosecution to disclose certain documents relating to the intoxilyser 6000 IRL machine located at Drogheda Garda Station. These documents included service reports, a record of service results, a calibration certificate and other like documents and these are listed in the schedule attached to the case stated. He also sought an order for the inspection of the intoxilyser machine by a Mr. Cuffe an engineer acting for the accused and furthermore, and this is the aspect of the case which has given rise to controversy, he sought an order authorising the presence of Mr. Cuffe at the next servicing and testing of the intoxilyser machine which was due to be serviced and tested in early June of 2004. It was contended by the solicitor for the accused that the attendance of Mr. Cuffe, the engineer, on the occasion of the servicing and testing of the machine was required so that the engineer could be satisfied, having regard to the fact that materials already disclosed indicated that there was some discrepancy between the recommended methodology for the servicing and testing of the machine and the actual method employed. That any discrepancies or deficiencies in the method actually used did not give rise to inaccuracies in the ultimate result produced by the test. In that regard reliance was placed by Mr. Moore on the judgment of Geoghegan J. in the case of Whelan v. Kirby in which judgment was delivered by the Supreme Court on the 1st March, 2004.
In the District Court the prosecution was represented by Inspector O'Brien and, I am told, initially had no objection at all to any part of the order sought but that on an adjourned hearing on the 4th June, 2004, Inspector O'Brien did object to the part of the order which authorised Mr. Cuffe to be present at the next testing and servicing of the machine and the basis upon which he so objected was that the testing was to be carried out by a company known as QSL Limited which was a private limited company and that this State could not compel this company to permit its employees to be observed while carrying out their functions. As is apparent from the case stated the learned District Judge having heard the objection proceeded to make the order and having so done Inspector O'Brien sought a consultative case stated in respect of so much of the order of the District Court as authorised the presence of the engineer at the next occasion in which the machine was due to be serviced and tested and having agreed to that case stated the learned District Judge poses the following two questions which are as follows:
(a) Whether I was in the circumstances of the case correct in making an order authorising the presence of an engineer on behalf of the respondent at the next occasion on which the intoxilyser evidential breath testing machine was to be serviced and tested, and
(b) Whether I would be correct in proceeding to hear and determine the charge against the respondent in circumstances where such an inspection was sought on his behalf but had not been carried out.
In the hearing of this case stated before me it was submitted on behalf of the prosecution/appellant by Mr. Ó Braonáin that the learned District judge when faced with the objection to attendance by the engineer on the grounds that there would be a difficulty in enforcing the order against the servicers and testers, i.e. a third party to the proceedings that the learned District Judge should have satisfied himself that a constitutionally correct trial required the order to be made and he should have considered the evidential value of evidence that might have emerged and whether it could have assisted the accused in challenging the result produced by the machine in its printout.
In this regard it was submitted that having regard to the passage of time namely, two years and the fact that a number of testings of the machine had been carried out by the Medical Bureau for Road Safety and at least one servicing of the machine had taken place in the meantime, that it was highly unlikely that anything of evidential value to the accused would accrue from the attendance by his engineer and hence it was submitted that the District Judge should have refused to order that attendance.
In this regard reliance was replaced on several passages in the judgment of McKechnie J. in the case of McGonnell v. The Attorney General and The D.P.P. (Unreported judgment, 16th September, 2004), as demonstrating, in the first place the likely futility of the disputed order and secondly, that there was an onus on the accused in the District Court to have laid in expert evidence a basis for establishing that the attendance of the accused engineer at the next servicing and testing of the machine was a necessary step to ensure that a fair trial ensued.
For the accused/respondent it was submitted by Mr. Kenneally, S.C. that the accused was entitled to have his engineer attend the servicing of the machine having regard to the discrepancies revealed between the manufacturer recommendations and the actual methods used for servicing the machine in order to be satisfied that any such discrepancies or deficiencies did not render unreliable the performance of the machine and the result it produced. It was submitted that the accused's right to inspect the machine as discussed by Geoghegan J. in the case of Whelan v. Kirby requires that the inspection would be a meaningful and purposive one and as a meaningful and purposive inspection necessarily included, in this case, the attendance of the engineer at the next testing and servicing, that facility was part and parcel of the right to inspect as envisaged by Geoghegan J. in his judgment in Whelan v. Kirby and also by McKechnie J. at paragraph 111 of his judgment in the McGonnell v. The Attorney General and the D.P.P.
It was submitted that in the District Court hearing no objection was made initially to the order sought at all and subsequently at the adjourned hearing the District Judge was asked to reconsider or revoke his order in relation to authorising the attendance of the engineer at the next testing and inspecting, solely on the ground that there might be a difficulty in obtaining the compliance of the limited company who were to service and maintain the machine as this company were clearly not a party to the proceedings. No objection was raised, nor was it submitted that the learned District Judge need concern himself with the necessity or appropriateness of the order in the context of ensuring a fair trial.
It must be borne in mind that the issue before the District Court as to the extent of inspection and in particular whether there should be authorisation for attendance of the engineer at the next servicing and testing of the machine took place in an adversarial proceeding. In my view the onus rested on the prosecution to have raised such issues or objections that they considered necessary or relevant from the point of view of the prosecution. Where no objections were raised, the learned District Judge was entitled to proceed on the basis that the prosecution did not have any objection to the court granting the particular relief sought by the accused, save of course, to the extent that such objection was raised and stated by the prosecution. It cannot be said that in an adversarial system and particularly in criminal matters that an onus rests on the judge to anticipate and of his/her own motion raise issues and potential objections by the prosecution for his/her determination. In this case the only objection ultimately raised was limited to difficulties with compliance because of the involvement of a third party. In my view the learned District Judge was in the circumstances of the case entitled to conclude that the possible problems with the third party were not such as should compel the Court to refuse the relief sought. In the absence of clear evidence that the third party would not comply in my view the learned District Judge was right to make the order. As indicated earlier the learned District Judge cannot be said to have been incorrect in the making of this order because of an objection that was never made to him.
I would therefore answer the first question by saying that the learned District Judge was in the circumstances of the case correct in making the order authorising the presence of the engineer at the next servicing and testing of the intoxilyser machine.
If the prosecution/appellant is unable to obtain the compliance of the third party, i.e. the servicer and maintainer of the machine so that the inspection authorised cannot take place, the learned District judge will on an application in that respect being made by the accused have to consider whether a fair trial can ensue in the absence of that inspection. In that regard the learned District judge would have to consider the evidential value of the likely fruits of such an inspection and whether without that evidence the accused is disadvantaged in his defence, to such an extent that it could be said he cannot have a fair trial. Manifestly, I cannot and should not express any view on this topic at this stage.
Thus the second question cannot be answered as what is required is the exercise by the learned District Judge of his exclusive discretion to allow the trial to proceed or not, if that issue is raised by the accused, in the circumstances envisaged above.
Approved: O'Neill J.